[Federal Register Volume 72, Number 176 (Wednesday, September 12, 2007)]
[Rules and Regulations]
[Pages 51990-51992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4490]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. AMS-FV-07-0051; FV07-981-2 FR]


Almonds Grown in California; Change in Requirements for 
Interhandler Transfers of Almonds

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule revises the requirements for interhandler transfers 
of almonds under the administrative rules and regulations of the 
California almond marketing order (order). The order regulates the 
handling of almonds grown in California and is administered locally by 
the Almond Board of California (Board). This rule requires handlers who 
transfer almonds to other handlers to report to the Board whether or 
not the almonds were treated to achieve a 4-log reduction in Salmonella 
bacteria (Salmonella). This action will help the Board track treated 
and untreated almonds and facilitate administration of its mandatory 
Salmonella treatment program.

DATES: Effective Date: September 13, 2007.

FOR FURTHER INFORMATION CONTACT: Maureen T. Pello, Assistant Regional 
Manager, or Kurt J. Kimmel, Regional Manager, California Marketing 
Field Office, Marketing Order Administration Branch, Fruit and 
Vegetable Programs, AMS, USDA, Telephone: (559) 487-5901, Fax: (559) 
487-5906, or E-mail: <a href="/cdn-cgi/l/email-protection#7b361a0e091e1e15552b1e1717143b0e081f1a551c140d"><span class="__cf_email__" data-cfemail="84c9e5f1f6e1e1eaaad4e1e8e8ebc4f1f7e0e5aae3ebf2">[email protected]</span></a>, or <a href="/cdn-cgi/l/email-protection#e5ae909791cbae8c88888089a590968184cb828a93"><span class="__cf_email__" data-cfemail="f5be808781dbbe9c98989099b580869194db929a83">[email protected]</span></a>.
    Small businesses may request information on complying with this 
regulation by contacting Jay Guerber, Marketing Order Administration 
Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence 
Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 
720-2491, Fax: (202) 720-8938, or E-mail: <a href="/cdn-cgi/l/email-protection#612b00184f2614041303041321141205004f060e17"><span class="__cf_email__" data-cfemail="5f153e2671182a3a2d3d3a2d1f2a2c3b3e71383029">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing 
Order No. 981, as amended (7 CFR part 981), regulating the handling of 
almonds grown in California, hereinafter referred to as the ``order.'' 
The order is effective under the Agricultural Marketing Agreement Act 
of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the 
``Act.''
    The Department of Agriculture (USDA) is issuing this rule in 
conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect. This final rule will not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with USDA a petition 
stating that the order, any provision of the order, or any obligation 
imposed in connection with the order is not in accordance with law and 
request a modification of the order or to be exempted therefrom. A 
handler is afforded the opportunity for a hearing on the petition. 
After the hearing, USDA would rule on the petition. The Act provides 
that the district court of the United States in any district in which 
the handler is an inhabitant, or has his or her principal place of 
business, has jurisdiction to review USDA's ruling on the petition, 
provided an action is filed not later than 20 days after the date of 
the entry of the ruling.
    This final rule revises the requirements for interhandler transfers 
of almonds under the administrative rules and regulations of the order. 
This rule require handlers who transfer almonds to other handlers to 
report to the Board whether or not the almonds were treated to achieve 
a 4-log reduction in Salmonella. A mandatory treatment program to 
reduce the potential for Salmonella in almonds took effect in September 
2007. This action will enable the Board to track treated and untreated 
almonds and help facilitate administration of its mandatory treatment 
program. This action was unanimously recommended by the Board at a 
meeting on March 28, 2007.
    Section 981.55 of the order provides authority for handlers to, 
upon notice to and under supervision of the Board,

[[Page 51991]]

transfer almonds to another handler. Marketing order obligations 
regarding volume regulation, when in effect, and assessments must be 
fully met and may be divided between the participating handlers. 
Section 981.455 requires handlers to report to the Board on ABC Form 
No. 7, ``Interhandler Transfer of Almonds,'' information regarding 
interhandler transfers. Paragraph (a) of that section currently 
requires the following information: (1) Date of transfer; (2) the names 
and plant locations of both the transferring and receiving handlers; 
(3) the variety of almonds transferred; (4) whether the almonds are 
shelled or unshelled; and (5) the name of the handler assuming reserve 
and assessment obligations on the almonds transferred.
    In August 2006, the Board recommended a mandatory treatment program 
to reduce the potential for Salmonella in almonds. USDA engaged in 
informal rulemaking to implement the program. A final rule was 
published on March 30, 2007 (61 FR 15021). Beginning in September 2007, 
handlers must subject their almonds to a process that achieves a 4-log 
reduction in Salmonella prior to shipment. The program exempts 
untreated almonds that are shipped to manufacturers in the U.S., 
Canada, and Mexico who agree to treat the almonds and untreated almonds 
that are shipped outside the U.S., Canada, and Mexico.
    To help track treated and untreated almonds, the Board met in March 
2007 and recommended revising the order's administrative rules and 
regulations to require handlers to report to the Board whether or not 
almonds transferred to other handlers were treated under the mandatory 
treatment program. Handlers must include an identification number for 
each lot transferred. This number may be a contract number or other 
unique handler number that can identify the lot. Under the mandatory 
Salmonella treatment program, handler records must provide the ability 
to differentiate treated from untreated almonds (Sec.  981.442(b)(5)). 
Requiring handlers to provide lot identification numbers on their 
interhandler transfer forms complements this requirement. These changes 
to the interhandler transfer requirements will help facilitate 
administration of the mandatory Salmonella treatment program. Paragraph 
(a) in Sec.  981.455 is revised accordingly.

Final Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this rule on small entities. Accordingly, AMS has 
prepared this final regulatory flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and the rules issued thereunder, are unique in 
that they are brought about through group action of essentially small 
entities acting on their own behalf.
    There are approximately 6,000 producers of almonds in the 
production area and approximately 110 handlers subject to regulation 
under the marketing order. Small agricultural producers are defined by 
the Small Business Administration (13 CFR 121.201) as those having 
annual receipts of less than $750,000, and small agricultural service 
firms are defined as those whose annual receipts are less than 
$6,500,000.
    Data for the most recently completed crop year indicate that about 
52 percent of the handlers shipped under $6,500,000 worth of almonds. 
Dividing the average almond crop values for 2003-04, 2004-05, and 2005-
06 as reported by the National Agricultural Statistics Service ($2.105 
billion) by the number of producers (6,000) yields an average annual 
producer revenue estimate of about $350,000. Based on the foregoing, 
about half of the handlers and a majority of almond producers may be 
classified as small entities.
    This rule revises Sec.  981.455(a) of the order's administrative 
rules and regulations to require handlers who transfer almonds to other 
handlers to report to the Board whether or not the almonds were treated 
to achieve a 4-log reduction in Salmonella. A mandatory treatment 
program to reduce the potential for Salmonella in almonds took effect 
in September 2007. This action will help the Board track treated and 
untreated almonds and help ensure the integrity of its mandatory 
program. Authority for this change is provided in Sec. Sec.  981.55 of 
the order.
    Regarding the impact of this action on affected entities, it merely 
requires handlers who transfer almonds to other handlers to indicate on 
ABC Form No. 7, ``Interhandler Transfer of Almonds,'' whether or not 
the almonds were treated to achieve a 4-log reduction in Salmonella. 
Handlers must also include a lot identification number for each lot 
transferred.
    Regarding alternatives to this action, the Board considered not 
requiring handlers to report whether their transferred almonds were 
treated to achieve a 4-log reduction in Salmonella. However, this would 
not allow the Board to track treated and untreated almonds. Thus, the 
Board unanimously recommended revising the requirements regarding 
interhandler transfers of almonds.
    This action slightly modifies the reporting requirements for all 
California almond handlers. All handlers must currently report their 
interhandler transfers to the Board on ABC Form No. 7, ``Interhandler 
Transfer of Almonds.'' This form had been approved by the Office of 
Management and Budget (OMB) under OMB No. 0581-0178, Vegetable and 
Specialty Crops. This rule requires that two extra columns be added to 
this form. One column allows handlers to indicate whether or not the 
transferred almonds were treated to achieve a 4-log reduction in 
Salmonella. The second column provides for inclusion of a lot 
identification number for tracking purposes. In accordance with the 
Paperwork Reduction Act (44 U.S.C. Chapter 35), the revised form has 
been submitted to the OMB for approval. Once approved, this information 
collection will be merged into OMB No. 0581-0178. It is estimated that 
it will take a handler about 0.5 hour per response, and that 50 
handlers will respond and submit the form five times per year. Thus, 
the total annual reporting burden for the form is estimated at 125 
hours per year.
    AMS is committed to complying with the E-Government Act, to promote 
the use of the Internet and other information technologies to provide 
increased opportunities for citizen access to Government information 
and services, and for other purposes.
    USDA has not identified any relevant Federal rules that duplicate, 
overlap or conflict with this rule. As with all Federal marketing order 
programs, reports and forms are periodically reviewed to reduce 
information requirements and duplication by the industry and public 
sector agencies.
    Additionally, the meetings were widely publicized throughout the 
California almond industry and all interested persons were invited to 
attend the meetings and participate in deliberations on all issues. The 
Board's Food Quality and Safety Committee discussed this issue on 
January 30, 2007. The committee recommended the change to the Board on 
March 28, 2007. Both of these meetings were public meetings and all 
entities, both large and small, were able to express views on this 
issue.
    A proposed rule concerning this action was published in the Federal 
Register on June 8, 2007 (72 FR 31759).

[[Page 51992]]

Copies of the rule were also mailed or sent via facsimile to all almond 
handlers. Finally, the proposal was made available through the Internet 
by USDA and the Office of the Federal Register. A 60-day comment period 
ending August 7, 2007, was provided for interested persons to respond 
to the proposal.
    One comment was received during the comment period in response to 
the proposal. The commenter asked if the same rules and safeguards 
apply to almonds imported from other countries. Almonds are not listed 
in section 8e of Act. Thus, imported almonds are not subject to 
comparable quality requirements as those in effect for the domestic 
commodity.
    Accordingly, no changes will be made to the rule as proposed, based 
on the comment received.
    A small business guide on complying with fruit, vegetable, and 
specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance 
guide should be sent to Jay Guerber at the previously mentioned address 
in the FOR FURTHER INFORMATION CONTACT section.
    After consideration of all relevant matters presented, including 
the information and recommendation submitted by the Board and other 
available information, it is hereby found that this rule, as 
hereinafter set forth, will tend to effectuate the declared policy of 
the Act.
    It is further found that good cause exists for not postponing the 
effective date of this rule until 30 days after publication in the 
Federal Register (5 U.S.C. 553) because mandatory compliance with the 
Salmonella treatment program began September 1, 2007, and this rule 
should be in place as soon as possible so the Board can track treated 
and untreated almonds. Further, handlers are aware of this action, 
which was unanimously recommended at a public meeting. Also, a 60-day 
comment period was provided for in the proposed rule, and the comment 
received was addressed herein.

List of Subjects in 7 CFR Part 981

    Almonds, Marketing agreements, Nuts, Reporting and recordkeeping 
requirements.


0
For the reasons set forth in the preamble, 7 CFR part 981 is amended as 
follows:

PART 981--ALMONDS GROWN IN CALIFORNIA

0
1. The authority citation for 7 CFR part 981 continues to read as 
follows:

    Authority: 7 U.S.C. 601-674.

0
2. Section 981.455 is amended by revising paragraph (a) to read as 
follows:


Sec.  981.455  Interhandler transfers.

    (a) Transfers of almonds. Interhandler transfers of almonds 
pursuant to Sec.  981.55 shall be reported to the Board on ABC Form 7. 
The report shall contain the following information:
    (1) Date of transfer;
    (2) The names, and plant locations of both the transferring and 
receiving handlers;
    (3) The variety of almonds transferred;
    (4) Whether the almonds are shelled or unshelled;
    (5) The name of the handler assuming reserve and assessment 
obligations on the almonds transferred;
    (6) Whether the almonds had been treated to achieve a 4-log 
reduction in Salmonella bacteria, pursuant to Sec.  981.442(b); and
    (7) A unique handler identification number for each lot.
* * * * *

    Dated: September 7, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-4490 Filed 9-10-07; 10:05 am]
BILLING CODE 3410-02-P


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